Citation Nr: 0031900
Decision Date: 12/06/00 Archive Date: 12/12/00
DOCKET NO. 92-04 073 ) DATE
)
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On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to an increased rating for a low back disorder,
currently rated 40 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Kimberly E. Harrison Osborne, Counsel
INTRODUCTION
The veteran served on active military service from September
1985 to September 1986. This matter comes before the Board
of Veterans' Appeals (Board) on appeal from an October 1991
rating decision by the RO which granted an increased rating,
from 0 percent to 20 percent, for the veteran's service-
connected low back disabililty. By RO rating action in
February 1995, the low back disability rating was increased
to 40 percent. The veteran continues to appeal for a higher
rating. In May 1998, the Board remanded the claim to the RO
for further development.
FINDINGS OF FACT
1. The veteran's service-connected postoperative low back
disability is currently productive of no more than severe
limitation of motion of the low back, severe lumbosacral
strain, and severe intervertebral disc syndrome; the veteran
does not have pronounced intervertebral disc syndrome of the
low back.
2. In relation to his claim for an increased rating for a
low back disorder, the veteran reported for a VA examination,
but without good cause refused to be examined.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 40 percent for a
low back disability have not been met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293,
5295 (2000).
2. Reporting for a scheduled VA examination but refusing to
be examined also requires denial of the claim for an
increased rating for a low back disorder. 38 C.F.R.
§§ 3.326, 3.327, 3.655 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran had active military service from September 1985
to September 1986. His service medical records show he was
treated for back pain which was diagnosed as mechanical back
pain.
In September 1986, the veteran filed a claim of service
connection for a low back disorder. In connection with his
claim, he underwent a VA examination in October 1986. The VA
examination report revealed a diagnosis of lumbosacral
strain. The RO, in a December 1986 decision, granted service
connection for a lumbosacral strain, assigning a
noncompensable rating.
The veteran filed a claim for an increased rating for his low
back disorder in March 1991.
Multiple medical reports from 1991 show the veteran was
treated for low back pain. In April 1991, the veteran was
treated for low back pain. He stated he had worn a back
brace for approximately 3 1/2 years. In May 1991, the veteran
was discharged from a VA medical center (MC) with diagnoses
of lumbosacral strain and possible herniated disc. The
veteran's back was evaluated in June 1991. The diagnosis was
rule out herniated disc. During this time, he was educated
on back strengthening and flexibility exercises.
The veteran indicated on examination in June 1991 that he had
back pain for the past 3 years. He stated he now had back
pain and a sensation to the left knee. He stated he had
numbness of both knees. Physical examination revealed no
spine tenderness, +2 DTR throughout, strength 5/5 throughout,
sensation intact, and straight leg raising negative
bilaterally. The impression was low back strain.
During a July 1991 VA examination, the veteran complained of
experiencing pain and aching of the lower back. He stated
that from time to time he also had numbness of the lower
legs. He stated that his back disorder was aggravated by
lifting and from cold and damp weather. He also stated that
running aggravated his back. Physical examination of the
back revealed a slight muscle spasm of the paraspinal
muscles. Range of motion studies revealed forward flexion of
0 to 55 degrees, and lateral rotation of 0 to 25 degrees.
Further attempts at forward flexion and lateral rotation of
the lumbar spine caused discomfort. Lumbosacral strain
associated with limitation of motion was diagnosed. The
examiner referred the veteran for a neurological evaluation.
On neurological examination in July 1991, the veteran stated
that only occasionally and when the pain was severe did he
have radiating pain and numbness down to both knees.
Physical examination revealed that forward bending was
limited to 90 degrees. He had no definite motor weakness and
his sensory examination was within normal limits. He had
increased pain with straight leg raising beyond 60 degrees.
The impression was chronic low back pain with occasional
radiation to both knees. The examiner stated that there was
no hard radicular signs on examination and that his
difficulties were likely musculoskeletal in origin.
A July 1991 lower extremity nerve conduction test report
reveals the veteran had a normal study. A doctor reported
that at present there was no evidence of radiculopathy or
other peripheral nerve lesion.
September 1991 X-ray studies of the lumbar spine revealed
loss of normal lordotic curvature which could be due to
muscular spasm. No other abnormality was detected.
The RO, in an October 1991 rating decision, granted an
increased rating to 20 percent for the veteran's service-
connected low back disorder.
In October and November 1991, the veteran was treated for low
back pain. He continued to complain of low back pain in
1992. Physical examination during this time showed the
veteran's lumbar range of motion was limited. However, his
motor strength was 5/5 and his sensation was intact.
Bilateral straight leg raising was primarily noted to be
negative during this time.
During a July 1992 RO hearing, the veteran testified that
that he had problems with his back if he were to sit or walk
for a prolonged period of time. He stated he also had
problems climbing stairs. He reported that he did not take
any medication for his back, as he found that medication
prescribed did not alleviate the pain. He stated that his
back condition interfered with his ability to do labor type
work.
An August 1992 VA examination revealed the veteran complained
of low back pain which radiated into both legs. Physical
examination revealed paraspinal tenderness. Range of motion
studies showed the veteran had forward flexion to 10 degrees,
backward extension to 10 degrees, and lateral flexion to 10
degrees. The examiner diagnosed lumbosacral strain with pain
radiating to both legs and severe decreased range of motion.
In August 1992, the veteran underwent a VA neurological
examination. On examination, he indicated that his back pain
had become more severe. He stated he was unable to sleep on
his back and that he had back pain which went down both legs.
He stated that coughing or sneezing did not aggravate the
pain. He indicated that he had trouble bending forward and
stated that he could not lift objects from the floor. He
stated that his feet felt numb at times. Neurological
examination was essentially negative with the exception that
straight leg raising test was not normal and he could only
raise the right leg about 25 to 30 degrees due to discomfort.
Spasm of the paraspinal muscles was noted. The diagnosis was
that there was no evidence of any radiculopathy due to
discogenic disease.
Outpatient treatment reports from 1993 to 1994 show the
veteran periodically was treated for low back pain.
Examination of the back in March 1994 revealed negative
bilateral straight leg raising and mild weakness in the left
quadriceps. Lumbar stenosis was diagnosed and the plan was
to have the veteran undergo lumbar decompression. A few days
later, in March 1994, the veteran underwent L4 and L5
laminectomies with bilateral foraminotomies at L4-5 and L5-
S1. He was discharged approximately 8 days later. His
diagnosis was lumbar stenosis.
The veteran underwent VA examination in April 1994. It was
noted he recently underwent back surgery and was in a
wheelchair. During the examination, the veteran could not
flex or extend due to pain. The diagnosis was postoperative
laminectomy L3- L4, occurred 2 week ago. The examiner noted
the veteran had a poor range of motion of the back.
In a May 1994 letter, Bruce E. Northrup, M.D. noted that
since the surgical decompression, the veteran he had been
completely without back or lower extremity pain, weakness or
numbness. He was ambulating without any difficulty. The
veteran stated he felt good since his surgery. Physical
examination revealed the veteran had a well healed midline
lumbar incision with no evidence of paraspinal muscle spasm.
He had excellent strength graded 5 out of 5 throughout all
muscle groups in both lower extremities. There was no
evidence of sensory deficits in either lower extremity. He
was able to ambulate on heels and toes independently. His
reflexes were graded one plus at the knees and the ankles
without asymmetry. Dr. Northrup concluded that the veteran
was having an excellent recovery after two level lumbar
laminectomy and bilateral foraminotomies for lumbar stenosis.
The veteran failed to report to an October 1994 VA
examination.
A February 1995 RO decision granted an increased rating to 40
percent for the service-connected low back disorder,
effective from March 1991. Effective from March 1994 through
May 1994, he was awarded a temporary total convalescent
rating (38 C.F.R. § 4.30) based on surgery for the low back
condition. Effective from June 1994, a 40 percent rating was
assigned for the low back condition (now described as
postoperative laminectomies at L4-L5 with bilateral
foraminotomies at L4-L5 and L5-S1).
The veteran failed to report to a February 1995 VA
examination.
In March 1995, the veteran called the RO requesting to be
rescheduled for his VA examination. The veteran was
rescheduled for a VA examination in May 1995. However, he
failed to report for that examination as well.
In a January 1997 statement, the veteran asserted that his
service-connected back disorder warranted a 100 percent
rating.
On March 1997 VA examination, the veteran stated he had
constant low back pain which went down the left lower
extremity. He stated that his pain was exacerbated when the
weather turned cold or when there was moisture in the air.
He denied a history of bladder or bowel dysfunction.
Physical examination demonstrated marked tenderness in the
lumbar paraspinal muscles. There were spasms on the
paraspinal musculature. Range of motion studies revealed
forward flexion to 15 degrees, extension to 5 degrees,
bilateral lateral rotation to 10 degrees, and bilateral
lateral flexion to 10 degrees. Neurological examination
demonstrated 5/5 power in the quadriceps, hamstrings,
tibialis anterior, and gastrocnemius muscles. Deep tendon
reflexes were symmetrical. There were no sensory deficits.
The diagnostic impression was status post lumbar laminectomy
with marked reduction in range of motion and radicular
symptomatology down the left lower extremity, predominately
sensory. The examiner stated that there were no objective
neurological findings.
In a letter dated in May 1997, Dr. Bryan H. Ehrlich stated
the veteran reported to his office on 3 occasions in March
1997 due to low back pain and muscle spasm.
In 1997, the veteran's representative argued that the veteran
was entitled to a 60 percent rating as a result of disability
attributable to his service-connected low back disorder.
An MRI of the lumbar spine dated in January 1998 revealed a
diagnosis of status post L4 and L5 laminectomy, minimal
ventral epidural scar tissue visualized at L4 and L5 levels,
small central disc herniation at L3-L4, and congenital lumbar
spinal stenosis.
In May 1998, the Board remanded the claim to the RO for
further development. Such development included scheduling
the veteran for a VA examination and obtaining additional
treatment records.
An August 1998 CT scan of the lumbar spine revealed an
impression of status post discography; dedicated axial images
of the lumbar spine at L3-4, L4-5 and L5-S1; contrast
extending to the outer annular fibers at L3-4 and L4-5,
consistent with degenerative changes; and laminectomy at L4
and L5.
The veteran, in August 1998, underwent provocative lumbar
discography at L2-3, L3-4, L4-5, and L5-S1. The
postoperative diagnosis was chronic axial low back pain
associated with degenerative L3-4 and L4-5 discs, and status
post L3-4 laminectomy. The physician concluded that the
veteran had positive provocation of exact high intensity low
back pain with both mechanical disc stimulation at L3-4 and
L4-5. Both discs were severely disrupted and degenerative
with contrast circumferentially throughout the disc space
without herniated nucleus pulposus.
The veteran, in a November 1998 letter, stated he would
undergo "spine cath intradiscal electrothermal therapy" due
to 2 degenerative discs. In December 1998, the veteran
submitted general information regarding this procedure.
In February 1999, the veteran reported for a VA examination.
However, he refused to be examined.
In February 1999, approximately one week after the February
1999 scheduled VA examination, the veteran was seen at the VA
neurological clinic. The veteran was interested in whether
an intradiscal electrothermal procedure could be performed by
VA. During this treatment visit, the veteran stated that the
pain in his low back occasionally went down his legs. He
reported he was able to work, and had no bowel or bladder
problem. He stated that his day to day pain was 8/10. The
examiner noted that he was calm and relaxed when he reported
his level of pain. He stated that he took no analgesics.
Physical examination revealed the veteran sat calm and
relaxed in a chair. He walked well and was able to easily
bend. He was also able to rise up onto his heels and toes.
He had no lower back spasm, and had no tenderness of the
lower spine or sciatic notches. Straight leg raising was
negative. He had no atrophy or fasciculations. He had full
power in the legs. Knees and ankles jerk were 2+. Scratch
was intact in the lower limbs. The impression was lower back
pain, probably musculoskeletal in origin.
The RO wrote the veteran in April 1999 noting his refusal to
be examined by a particular VA neurologist. The RO ensured
the veteran that another neurologist could examine him. The
RO cited 38 C.F.R. § 3.655 which informed the veteran that
his claim could be denied for failing to report for
examination. The RO requested that the veteran contact them
if he was willing to report for an examination. Otherwise,
the RO stated, its decision would be based on the evidence
currently of record.
In July 1999, the veteran reported for treatment noting a
history of chronic low back pain for which he took Motrin as
needed. He stated he now had lower extremity edema. He
denied any other complaints such as urinary problems, fever,
or chills. Physical examination revealed 1+ lower extremity
edema. The impression was chronic back pain rule out
interstitial nephritis due to non-steroidal anti-inflammatory
drugs (NSAIDS).
The veteran was initially treated at the Jefferson Pain
Center in November 1999. In a November 1999 report, the
physician outlined the veteran's medical history pertaining
to his back disorder. He reported that currently the veteran
described axial low back pain which was constant and sharp.
The veteran stated that his pain was 2/10 to 3/10 when lying
down and up to 10/10 when weight-bearing or sitting. He
denied any lower extremity weakness or numbness. He also
denied bowel or bladder disturbances. The physician noted
that the veteran's pain had interfered mostly with his life
in that he had been off work as a bill collector since
January of this year due to back pain. The impression was
discogenic pain of the L3-L4 and L4-L5 levels; status post
L4-L5 laminectomy; and possible facet disease. The
physician's plan was to refer the veteran for physical
therapy and a lumbar stabilization program and to schedule
him for bilateral L4-5 and L5-S1 interarticular facet
injections for diagnostic and therapeutic purposes.
The veteran underwent a lumbar epidural steroid injection in
November 1999. The postoperative diagnosis was post
laminectomy syndrome with discogenic pain at the L3-4 and L4-
5 level.
In December 1999, the veteran was again treated at the
Jefferson Pain Center. During such treatment visit, the
veteran continued to complain of low back pain. He denied
any neurological complaints, including any bowel or bladder
disturbances. Physical examination revealed the veteran's
gait was normal, and he was able to walk on toes and heels.
His lumbar spine range of motion was normal (90 degrees) on
flexion and he had full extension. However, he had painful
deflection and extension. On neurological examination, the
veteran was intact. Both upper and lower extremities were
intact to sensory, motor and reflexes, with negative Babinski
and clonus. Straight leg testing and Patrick's testing were
negative. His extremities were without evidence of atrophy
or fasciculations and pulses were 2+. Palpation of the back
elicited mild tenderness over the paravertebral and midline
structures. The physician's impressions were discogenic pain
at L3-4 and L4-5 levels, and status post previous L4-5
laminectomy. The physician stated he had scheduled the
veteran for a palliative lumbar epidural injection under
fluoroscopic guidance targeting the L3-4 and L4-5 levels.
The veteran was also referred to physical therapy and was
started on Ultram.
In December 1999, the veteran underwent
diagnostic/therapeutic lumbar facet injections. The
physician noted that the veteran had no pain relief following
the intralaminar epidural injection. The diagnoses were
degenerative disc disease of the lumbar spine, post-
laminectomy syndrome, axial low back pain, and rule out facet
joint disease.
The veteran's representative argued in February 2000 that the
veteran's service-connected back disorder warranted a 60
percent rating. He noted that the veteran had a spinal
laminectomy, had a great deal of muscle spasm and pain which
radiated into the lower extremity, had limitation of motion
of the back, took medication for muscle spasms and back pain,
had problems negotiating stairs, and could not walk for a
prolonged period of time.
In a February 2000 letter, the RO again told the veteran he
was being given another opportunity to indicate he was
willing to report for a VA examination, and he was told to
respond. This was again noted in an August 2000 supplemental
statement of the case. To date, the veteran has not
indicated willingness to report for a VA examination to
evaluate his low back condition.
II. Analysis
Initially, it is noted that the Board is satisfied that all
relevant evidence has been properly developed to the extent
possible, and no further assistance is required to comply
with the duty to assist. Veterans Claims Assistance Act of
2000, Pub.L. No. 106-475, 114 Stat. 2096 (November 9, 2000),
including new 38 U.S.C.A. § 5103A.
In May 1998, the Board remanded the claim to the RO for
further development. This development included scheduling
the veteran for a VA examination and giving him an
opportunity to submit additional evidence. The veteran
appeared for the VA examination in February 1999 but refused
to be examined. The RO gave him several opportunities to be
rescheduled for another examination. However, he has never
responded by indicated willingness to report for a VA
examination. The duty to assist is not a one-way street, and
the veteran has failed to cooperate in developing his claim.
Wood v. Derwinski, 1 Vet.App. 190 (1991).
Regulations provide that veterans have an obligation to
report for VA examinations and reexaminations which are
scheduled in connection with their claim, and if a veteran,
without good cause, fails to report for such examination, an
increased rating claim is to be denied. 38 C.F.R. §§ 3.326,
3.327, 3.655; Engelke v. Gober, 10 Vet.App. 396 (1997).
Refusing to be examined after reporting for a VA examination
is no different from failing to report to an examination.
The veteran has provided no good cause for refusing to be
examined by the VA, and this alone serves as a basis to deny
his claim. Id. The Board will, nonetheless, adjudicate the
merits of his claim.
When rating the veteran's service-connected disability, the
entire medical history must be borne in mind. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the present
level of disability is of primary concern in a claim for an
increased rating; the more recent evidence is generally the
most relevant in such a claim, as it provides the most
accurate picture of the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55 (1994).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4.
The veteran claims that his service-connected low back
disorder is more disabling than reflected in the 40 percent
rating currently assigned. The Board observes that a higher
rating is not in order under the rating criteria pertaining
to limitation of motion of the lumbar spine (38 C.F.R. §
4.71a, Diagnostic Code 5292) or lumbosacral strain (38 C.F.R.
§ 4.71a, Diagnostic Code 5295), as the maximum rating under
these diagnostic codes (assigned when there is severe lumbar
spine limitation of motion or severe lumbosacral strain) is
40 percent.
The veteran's low back disability involves disc disease. He
has been diagnosed as having degenerative disc disease and of
having a small central disc herniation at L3-L4.
Consequently, his service-connected back disorder may be
rated as intervertebral disc syndrome under 38 C.F.R. §
4.71a, Code 5293. Under this code, severe intervertebral
disc syndrome, with recurring attacks and intermittent relief
warrants a 40 percent evaluation. A 60 percent rating is the
maximum rating for intervertebral disc syndrome, and is
warranted when it is pronounced, with persistent symptoms
compatible with sciatic neuropathy with characteristic pain
and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to the site of the diseased
disc, and little intermittent relief. 38 C.F.R. § 4.71a,
Diagnostic Code 5293.
The determinative issue in the instant case is whether the
veteran's intervertebral disc syndrome symptomatology is
pronounced or whether it is severe. A review of the VA
medical evidence shows that his condition does not meet the
criteria for the next higher rating of 60 percent under Code
5293 as his symptoms are not pronounced. In this regard, the
Board notes that although medical reports from 1991 to 1999
show that the veteran has limitation of motion of the lumbar
spine, has occasional muscle spasms of the back, and has
complaints of low back pain which radiates into his lower
extremities, the records demonstrate few objective abnormal
neurological findings. In 1991, the veteran was noted to
have +2 deep tendon reflexes, his strength was full
throughout, his sensation was intact and his bilateral
straight leg raising was negative. A 1991 nerve conduction
test was normal. Neurological findings in 1992 continued to
show that the veteran's sensations were intact and that his
motor strength was 5/5. VA neurological examination in
August 1992 was essentially negative with the exception that
straight leg raising test was not normal. However, the
examiner stated that there was no evidence of any
radiculopathy due to discogenic disease. In 1994, the
veteran had negative bilateral straight leg raising tests and
he was noted to have only mild weakness in the left
quadriceps.
Following the veteran's low back surgery in March 1994, his
back condition improved. In May 1994, he reported being
completely without back or lower extremity pain, weakness, or
numbness. In 1997, the veteran once again began to complain
of low back pain which radiated into his left lower
extremity. A March 1997 VA examination noted the veteran
denied a history of bladder or bowel dysfunction.
Neurological examination at that time demonstrated 5/5 power
in the quadriceps, hamstrings, tibialis anterior, and
gastrocnemius muscles. His deep tendon reflexes were
symmetrical. There were no sensory deficits. The examiner
reported that there were no objective neurological findings.
Moreover, in 1999, the veteran denied having any bowel or
bladder problem. He also denied having any lower extremity
weakness or numbness. During this time, straight leg raising
was negative, he had full power in the legs, and his knee and
ankle jerks were 2+. In addition, both his upper and lower
extremities were intact to sensory, motor and reflexes.
As demonstrated above, the evidence does not show pronounced
(60 percent) intervertebral disc symptoms as described in
Code 5293. There is no objective evidence of record showing
that the veteran persistently experiences symptomatology such
as sciatic neuropathy or diminished reflexes associated with
disc disease. While the medical records show, at times,
muscle spasms of the lumbar spine and complaints of pain in
the lower extremity, there have been very few abnormal
neurological findings appropriate to the site of a diseased
disc. Even assuming worse intervertebral disc syndrome
during flare-ups, and associated limitation of motion, the
intervertebral disc syndrome is not shown to be more than
severe in degree, with recurring attacks and intermittent
relief, and such supports no more than a 40 percent rating
under Code 5293. 38 C.F.R. §§ 4.40, 4.45; VAOPGCPREC 36-97.
A higher rating of 50 percent is permitted if there is
ankylosis of the lumbar spine in an unfavorable position. 38
C.F.R. § 4.71a, Code 5289. In this case, the medical
evidence shows that the veteran's lumbar spine has been noted
to be limited in motion; however, the lumbar spine is not
ankylosed (fixed in one position), let alone ankylosed in an
unfavorable position. Thus, a higher rating on such basis is
not warranted.
Based on a comprehensive review of the record, the Board
concludes that the preponderance of the evidence is against
the claim for an increase in the 40 percent rating for the
low back disability. Thus, the benefit-of-the-doubt rule
does not apply, and the claim must be denied. 38 U.S.C.A. §
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
An increased rating for a low back disorder is denied.
L. W. TOBIN
Veterans Law Judge
Board of Veterans' Appeals
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